The Oracle-Google copyright showdown is now in the hands of a San Francisco jury, following heated closing arguments given today to a packed courtroom. It's the culmination of the most high-profile attack on Google's Android mobile operating system, which Oracle lawyers say illegally ripped off Java.

In closing today, Oracle lawyer Michael Jacobs said that Google knowingly structured its Android APIs in the same way that Java APIs were structured, even though it knew that move was legally dicey; Google's lawyer, meanwhile, emphasized Android's originality and the fact that Sun Microsystems, which invented Java, had only good things to say about Android, even encouraging Google.

In addition to arguing that it didn't infringe Sun's copyrights at all, Google argued any use it did make should be considered "fair use." Jacobs ridiculed the fair use argument, saying it was merely Google's "first excuse."

The deliberations now underway are the first phase of Oracle America Inc. v. Google Inc., a trial between two tech heavyweights being played out in San Francisco federal court. The whole trial will last about eight weeks, and the copyright case is just the first "phase." The verdict, likely to come later this week, will be the first indication of how the jury views the evidence.

Oracle's claim: "There's a new sheriff in town."

Android doesn't have the same computer code that's in Java, but Oracle argues that because Google closely followed the "structure, sequence, and organization" of 37 Java Application Program Interfaces, or APIs, its copyrights have been violated. (Oracle acquired copyrights and patents associated with the Java language when it purchased Sun Microsystems in 2010.)

Judge William Alsup is letting several copyright questions go to the jury, even though the judge himself could still decide that APIs aren't copyrightable at all, and are just sets of instructions.

For the purposes of this case, the jurors were told to assume that APIs are indeed protectable. Oracle's lawyer, Michael Jacobs, made his case during closings that the Java APIs were "complex, creative, and artful," and that the 37 APIs Google had imitated were some of the "crown jewels" of the Java system. And that makes Google's copying a big deal—tantamount to using Oracle property without permission.

"This is not trivial," said Jacobs at one point. "This is very substantial copying that Google engaged in."

And Google's e-mails show that it knew a lawsuit was a real risk, he argued. That copying had damaged the Java community, and by giving away Android for free Google had "fragmented" the developer community—and made it hard for others to compete. "How do you compete with free in the smartphone world?" asked Jacobs, echoing a point that Oracle CFO Safra Catz made last week. "This harm to Java is on all levels."

Oracle argues that Google knew it was risking a lawsuit from Sun

Oracle

As for ex-Sun CEO Jonathan Schwartz's blog post welcoming the launch of Android, which has been touted by Google lawyers as proof that Sun approved of Google's actions, Jacobs said Schwartz was simply someone who didn't have a choice about Google's use of Java. "A blog post is not permission," said Jacobs. "A blog post is not a license." He portrayed Schwartz as someone who simply had no choice, highlighting Schwartz's testimony that he "grit [his] teeth," and was trying to "make the best of an uncomfortable situation."

In any case, the fact that Sun chose not to be aggressive about its intellectual property isn't relevant. "There is a new sheriff in town," Jacobs told the jury. "There is more investment in Java; there are more resources being devoted. The layoffs have stopped. [Now] we need the help of the justice system to enforce our intellectual property rights."

Google's defense: "They're not even in the ballpark."

The best argument that Google didn't do anything wrong was Sun's own reaction to Android at the time, said Google defense lawyer Robert Van Nest. Schwartz and others at Sun praised Google and even asked about how it could use Android, Van Nest said; and Schwartz confirmed what folks at Google thought, that the APIs are an intrinsic, inseparable part of the Java language, which is free for all to use.

Oracle is "not even in the ballpark" when it comes to proving similarities between the 37 Java APIs it claims ownership of, and Android's own APIs. And, he emphasized, Oracle isn't accusing Google of copying code—because it can't. After designing a computer program to analyze Android's millions of lines of code, Oracle found only nine lines of copied code in a function called rangeCheck(). That code, accidentally inserted by a Google engineer who testified last week, has been removed from all current versions of Android. "Other than the nine lines of code in rangecheck, everything in Android is original," said Van Nest—created entirely by Google engineers, or with Apache open source code.

As to Oracle's claim about the "structure, sequence, and organization" of the programming, Van Nest claimed since Oracle lacked evidence of true copying, it came around to the idea of "structure, sequence and organization"—a concept that Van Nest said was "something made up for this lawsuit," and was never fathomed by anyone at Sun or Google during their negotiations over Android and Java.

While Van Nest made it clear to jurors he thought Google should be in the clear on the primary question—and that it doesn't infringe copyrights at all—he presented a second defense as well. Because Android was transformative, APIs are "functional" tools, and Android didn't hurt the market for Java—profits in Oracle's Java-related businesses were up about 10 percent last year—any Android use of a copyrighted work should be found "fair use," in any case, Van Nest argued.

The jury is out

In their verdict form, the jury has to decide three essential questions: first, whether Google was infringing copyrights of the Java APIs; whether Google's use of the copyrighted material should be considered "fair use;" and a third question about whether the conceded small amount of actually copied code in Android is significant or "de minimis." A fourth question about whether Google could have reasonably believed it did not need a license is marked as being an advisory one for the judge that doesn't bear on the main questions.

On Monday, the jury left about an hour-and-a-half after closing arguments concluded. The panel of 12 will return tomorrow morning, and a verdict could come any time after that.

215 Reader Comments

To me it looks like you are arguing seperate topics. Your point seems to be that yes, with certain limitations, reverse engineering is legal. This is indisputably the case, the modern PC is a direct result of reverse engineering and several court decisions since then have upheld that principle.

His point seems to be that because there are limits on how a person can reverse engineer a product, it means reverse engineering is not completely legal. He is right to a degree. You cannot decompile and copy code. There are forms of reverse engineering that will certainly get you in trouble.

But that does not mean reverse engineering is illegal. Like almost everything in a society governed by law, there are conditions. You can do most things, as long as you follow the rules. Reverse engineering is no different. That does not mean it is 'illegal', only that there are things you are permitted to do and things you are not.

It's been a long, strange discussion to be sure, but the last two pages of comments have been asmoore82 and I going back and forth about this exchange:

asmoore82 wrote:

another ars account wrote:

Copyright does not make reverse engineering illegal. Patent can be an issue, but there has to be an actual issued patent.

Yes is does: FACT. Copyright covers the source code and the binaries produced by the code. Reverse engineering copyrighted binaries and distributing the derived source code or re-produced binaries is copyright infringement.

I agree with his last sentence there, you can't just copy someone else's code into your own product, but his first statement ("Yes it does: FACT.") is verifiably false, as are his subsequent reformulations, such as, "**True** reverse engineering with decompilers runs foul of copyright."

I actually thought it would be a quick matter to get him to admit that reverse engineering was legal even if you had to be aware of where the bright lines are that you do not cross (such as using decompiled code in your own product, or using someone else's code without a license) but he's been remarkably adamant in holding that (and I hope I'm not misrepresenting him here, he's welcome to offer clarification of course) reverse engineering legally is such a difficult tightrope walk that it might as well be illegal, QED it's illegal. I find it more to be that reverse engineering is like driving; you have to know the rules of the road, but they are easy enough to understand that I would never consider driving to be illegal.

Agreed. He is stuck on the idea of reverse engineering in a specific fashion, and declaring the entire concept to be illegal because his chosen methodology is itself illegal. But there is no such thing as 'true' reverse engineering, and the word engineering makes that implicit. When you engineer something, you are producing a solution to a problem or challenge, and typically there are several methods of reaching those goals. For someone doing reverse engineering, decompiling would be only one tool in their toolkit, and honestly not really one of the best ones as the code requires a ton of work and debugging due to how decompilers work. I'd much much rather take a well documented specification over decompiled code. Most engineers would, it would be much simpler to study, build and debug that implementation vs the mess a decompiled binary grants you.

His arguments honestly imply to me that he does not understand copyright or reverse engineering. Certainly not white box or black box work and why black box is often prefferable(it produces a spec).

You're absolutely right! We've already covered some specific circumstances under which it can be perfectly legal to kill another person. So as it turns out, absolutely nothing is illegal. Apparently there are just some things that are "not completely legal."

"Your Honor my client is absolutely not guilty. He just did some things that are not completely legal."

Sorry, couldn't resist.

reflex-croft wrote:

You can do most things, as long as you follow the rules.

It just doesn't sit quite the same way as simply "following the rules." You have to take very specific precautions and actions to make sure that you stay exclusively within your Fair Use rights. It's like a law that compels you to take further actions than you normally would. Like it's illegal to possess an unlicensed firearm, so the law compels you to get a permit. You can argue to death that possessing a firearm is perfectly legal *as long as you have a permit*, but it doesn't make all those unlicensed guns any more legal. Well, it's illegal to reverse, so the law compels you to stay exclusively within your Fair Use rights. It makes the simplest and most direct from of reversing illegal under any circumstances. Barring any patent complications, you can take a physical device apart, learn its trade secrets, and reassemble the devices using the same components. The same cannot be said about software - because of Copyright.

Yea, sure, I'm making too strong of an association between decompiling and reversing on the whole. And I hope it's a given that I'm only talking about reversing of software here. But the only way to truly know exactly what's in the code, is to look at the code. Sometimes for perfect interoperability, you might even have to reliably reproduce flaws or bugs in the original that would never be in the formal specs.

It's also like this: Patents protect the original owner even in the event of "independent reinvention." Copyright does not. For copyright infringement, there somehow must be proven some "missing link" between the original work and the infringing copy. Well, anytime you're talking about reversing, you are providing the "missing link" right there on a silver platter.

Bottom line being, that I would never feel comfortable to go around spreading the good word that "reversing is legal, Yay!!" when I know one can easily get into trouble with it. Would I explain that it can be legal if the right conditions are met? Sure. But at the beginning of the conversation, before any further explanation or qualifications: illegal.

You're absolutely right! We've already covered some specific circumstances under which it can be perfectly legal to kill another person. So as it turns out, absolutely nothing is illegal. Apparently there are just some things that are "not completely legal."

"Your Honor my client is absolutely not guilty. He just did some things that are not completely legal."

Sorry, couldn't resist.

reflex-croft wrote:

You can do most things, as long as you follow the rules.

It just doesn't sit quite the same way as simply "following the rules." You have to take very specific precautions and actions to make sure that you stay exclusively within your Fair Use rights. It's like a law that compels you to take further actions than you normally would. Like it's illegal to possess an unlicensed firearm, so the law compels you to get a permit. You can argue to death that possessing a firearm is perfectly legal *as long as you have a permit*, but it doesn't make all those unlicensed guns any more legal. Well, it's illegal to reverse, so the law compels you to stay exclusively within your Fair Use rights. It makes the simplest and most direct from of reversing illegal under any circumstances. Barring any patent complications, you can take a physical device apart, learn its trade secrets, and reassemble the devices using the same components. The same cannot be said about software - because of Copyright.

Yea, sure, I'm making too strong of an association between decompiling and reversing on the whole. And I hope it's a given that I'm only talking about reversing of software here. But the only way to truly know exactly what's in the code, is to look at the code. Sometimes for perfect interoperability, you might even have to reliably reproduce flaws or bugs in the original that would never be in the formal specs.

Knowing what is inside the code is less useful than you seem to believe it is. A solid spec is extremely useful. Decompiling the code is not a good step towards a solid spec. In fact its about the least efficient way you can arrive at a solid spec.

Knowing what is inside the code is less useful than you seem to believe it is.

Those trojan and virus writers seem to get a lot of mileage out of it.

reflex-croft wrote:

A solid spec is extremely useful. Decompiling the code is not a good step towards a solid spec. In fact its about the least efficient way you can arrive at a solid spec.

Sure, we'd all love a chicken in every pot and a solid spec for everything. But the fact still remains that even useless, fruitless decompiling efforts that run foul of copyright can "contaminate" your entire reversing project. Because of course, it's illegal unless you can *prove* "fair use."

Another lost component of the original discussion is that somebody provided the insane notion that software could be worse off without Copyright because everything would be "Trade Secret." Now you can't possibly claim by any stretch that Copyright hasn't made reversing *more* of a hassle. So therefore, well used reversing can easily trump trade secret (Wii games upscaled to HD, anyone?). But some will argue for anything, so here we get the trollish dig at Linux; and then pages of thread and time off my life that no one can recover .

Those trojan and virus writers seem to get a lot of mileage out of it.

The goals and precision required are very different.

reflex-croft wrote:

Sure, we'd all love a chicken in every pot and a solid spec for everything. But the fact still remains that even useless, fruitless decompiling efforts that run foul of copyright can "contaminate" your entire reversing project. Because of course, it's illegal unless you can *prove* "fair use."

Since its not efficient, consumes a ton of time, and there are better methods, why would you care? Decompilation is a last ditch effort, but really is rarely needed and stands as much chance of confusing the issue as assisting it. You would be far better off simply treating the binary as a black box and determining its inputs and outputs. Less time consuming, more accurate.

Quote:

Another lost component of the original discussion is that somebody provided the insane notion that software could be worse off without Copyright because everything would be "Trade Secret." Now you can't possibly claim by any stretch that Copyright hasn't made reversing *more* of a hassle. So therefore, well used reversing can easily trump trade secret (Wii games upscaled to HD, anyone?). But some will argue for anything, so here we get the trollish dig at Linux; and then pages of thread and time off my life that no one can recover .

You are welcome to your opinion. Others are welcome to disagree. I prefer copyright myself. Its a nice protection that permits myself and others to share code without losing control of its distribution.

Another lost component of the original discussion is that somebody provided the insane notion that software could be worse off without Copyright because everything would be "Trade Secret."

I said that without copyright on software, producers of software would have only the options of trade secret or public domain. I don't see how that can even be controversial; when you have three options and you take away one option, you have two options left.

As for whether that would lead to more or less software availability for people to build upon, do you honestly think corporations like IBM and Apple would be getting behind as many open source projects if they didn't have the option of releasing their code under the GPL? So others could take their contributions, roll in a few updates and have a competitive advantage leveraging the original company's work? It's insane to suggest they might not pursue that option?

I prefer copyright myself. Its a nice protection that permits myself and others to share code without losing control of its distribution.

But you do lose a bit of control, that's just the nature of sharing - or life itself really. The only thing the copyright really does is give you the ability to sue *if* you are even aware of the infringement at all and *if* you find it damaging enough to warrant pursuing the issue. It's interesting to consider the alternative. Because softwares have become indispensable tools or appliances and those things can't be copyrighted. Maybe something as subtle as source code is copyright-able but binaries are not could make all the difference in the world. After all, binaries are just 1's and 0's that can't be easily translated back into anything that is reasonably human readable. Just a thought.

As for whether that would lead to more or less software availability for people to build upon,

You seem to be grounded in the false notion that all good code is produced by mega-corporations.

another ars account wrote:

do you honestly think corporations like IBM and Apple would be getting behind as many open source projects

See right there you are admitting that corporations are getting involved in the free crowd because there is a lot of value there.

another ars account wrote:

if they didn't have the option of releasing their code under the GPL?

You know the only reason some of those companies GPL anyway is because the pre-existing codebase already was GPL. You may think that this proves your point for you but that's when we get into this..

another ars account wrote:

So others could take their contributions, roll in a few updates and have a competitive advantage leveraging the original company's work?

You know some companies already do that with an "open core" type model. So the fact remains either way that if done in an unethical fashion, the company shows their hand to the rest community for being the assholes they truly are.

another ars account wrote:

It's insane to suggest they might not pursue that option?

Is it insane to suggest that removing Copyright would remove a definite barrier to some reverse engineering? Is it insane to suggest that the asshole company in the above scenario is indeed creating a huge incentive for the community to pull together and do some major reversing engineering, *if* the company's code is worth the trouble. Is it insane to suggest that the Free Market itself keeps some bad behavior in check, especially in these open communities?

As for whether that would lead to more or less software availability for people to build upon,

You seem to be grounded in the false notion that all good code is produced by mega-corporations.

Not at all. They are a significant contributor though, and "mega-corporations" aren't the only developers that can be rather particular about what others can do with their software.

Quote:

another ars account wrote:

do you honestly think corporations like IBM and Apple would be getting behind as many open source projects

See right there you are admitting that corporations are getting involved in the free crowd because there is a lot of value there.

Sure.

Quote:

another ars account wrote:

if they didn't have the option of releasing their code under the GPL?

You know the only reason some of those companies GPL anyway is because the pre-existing codebase already was GPL. You may think that this proves your point for you but that's when we get into this..

... and if those codebases were not GPL, would those companies release their variants as public domain? I bet we wouldn't have WebKit source available, for instance, and a project of that size and speed of development would be virtually useless either as a copied binary blob or a decompiled mess of assembler.

Quote:

another ars account wrote:

So others could take their contributions, roll in a few updates and have a competitive advantage leveraging the original company's work?

You know some companies already do that with an "open core" type model. So the fact remains either way that if done in an unethical fashion, the company shows their hand to the rest community for being the assholes they truly are.

Corporations are assholes, news at 11. The only difference I see in the "no copyright" world is that they'd be assholes with less incentive to share source code.

Quote:

another ars account wrote:

It's insane to suggest they might not pursue that option?

Is it insane to suggest that removing Copyright would remove a definite barrier to some reverse engineering? Is it insane to suggest that the asshole company in the above scenario is indeed creating a huge incentive for the community to pull together and do some major reversing engineering, *if* the company's code is worth the trouble. Is it insane to suggest that the Free Market itself keeps some bad behavior in check, especially in these open communities?

I'm not the one calling your position insane, I'm just respectfully disagreeing.

And no, I don't think removing copyright protection would substantially reduce the barriers to reverse engineering code, because, as the Yale Law Journal has pointed out, reverse engineering software by decompiling it is perfectly legal in the US. You are allowed to learn how it works in order to create your own interoperable version but not to copy the original code into your own product, and as a software developer I don't find that to be a difficult concept to understand.

You can't help but gloss over with some over-broad generalizations can you? **Some** corporations are assholes; and those who are use the weak excuse that *all* are; news that you won't hear at 11.

another ars account wrote:

The only difference I see in the "no copyright" world is that they'd be assholes with less incentive to share source code.

I can't help you with what differences you flat out refuse to acknowledge, but they'd be assholes without a way to sue honest hard working reverse engineers and competitors who work towards greater interoperability.

another ars account wrote:

... and if those codebases were not GPL, would those companies release their variants as public domain? I bet we wouldn't have WebKit source available, for instance, and a project of that size and speed of development would be virtually useless either as a copied binary blob or a decompiled mess of assembler.

Yep, Apple would definitely be on the asshole list. Don't know if you ever used it, but KHTML was already pretty kickass before Apple molested it. Would not Chrome grown up from pure KHTML be just as good or better? Last I heard, the community is the one fixing all of the massive flaws that cause Apple to keep getting Pwn'd 2 Own'd and Apple is th one dragging its feet on rolling out the fixes to end users. Would the asshole Apple in a world of no copyright be a Virus infested wasteland? Poetic justice?

another ars account wrote:

And no, I don't think removing copyright protection would substantially reduce the barriers to reverse engineering code, because, as the Yale Law Journal has pointed out, reverse engineering software by decompiling it is perfectly legal in the US.

Fuck, I see that you can't help but start that shit again. Some legal, some not == you cannot make a blanket statement of "perfectly legal." Have fun arguing with the fucking walls, jackass. I'm OUT.

I prefer copyright myself. Its a nice protection that permits myself and others to share code without losing control of its distribution.

But you do lose a bit of control, that's just the nature of sharing - or life itself really. The only thing the copyright really does is give you the ability to sue *if* you are even aware of the infringement at all and *if* you find it damaging enough to warrant pursuing the issue. It's interesting to consider the alternative. Because softwares have become indispensable tools or appliances and those things can't be copyrighted. Maybe something as subtle as source code is copyright-able but binaries are not could make all the difference in the world. After all, binaries are just 1's and 0's that can't be easily translated back into anything that is reasonably human readable. Just a thought.

No, I gain control I would not have otherwise. Here is the problem with removing copyright: It gives creators less options and fewer opportunities to benefit from their work. In the current world, a creator can choose to copyright it, public domain it, or copyright and open source it. In a world without copyright, everything is public domain. Why remove a *choice*? Nothing in the current system stops you, as a creator, from making something public domain if you wish. But in the world you propose, you are not simply satisfied with making your own choices, but you wish to enforce those choices on everyone else, even though others may not want to put everything they do in the public domain. Why do you want to ram your own ideas on how content should be treated down everyone's throat? Furthermore, why do you feel that your personal opinion should trump the decisions that others have made?

Earlier in the discussion there was someone stating that copyright is what made the GPL necessary. The reason this argument is ridiculous is that those behind the GPL could have chosen to simply make their work public domain. Nothing stops them from doing so today. Instead they built the GPL, a contract based in copyright law, because they prefer a copyright system to a public domain system. They want those protections, even though they are giving away their code for free. It offers *more* to them than simple public domain.

Earlier in the discussion there was someone stating that copyright is what made the GPL necessary.

Are you sure it wasn't someone noting that copyright is what made the GPL possible? I'm not sure how it would make the GPL necessary, but you can't have a GPL without copyright and I don't believe we'd see as much source out there without it. And that's an admission from a BSD fan, by the way.

I agree with your comment generally though. Even if you were to posit that copyright made reverse engineering difficult to do legally, that could be fixed without tossing out the baby too.

Earlier in the discussion there was someone stating that copyright is what made the GPL necessary.

Are you sure it wasn't someone noting that copyright is what made the GPL possible? I'm not sure how it would make the GPL necessary, but you can't have a GPL without copyright and I don't believe we'd see as much source out there without it. And that's an admission from a BSD fan, by the way.

I agree with your comment generally though. Even if you were to posit that copyright made reverse engineering difficult to do legally, that could be fixed without tossing out the baby too.

It may have been Appleseed in a previous thread on this case, I do not remember. But I made the point that the GPL depends entirely upon copyright, and the response was that the GPL is a reaction to copyright. Which is ridiculous. Copyright does not remove anyone's right to put something in the public domain.